A Sense Of Humour Failure – when is a parody no longer funny?

There is a common assumption that there’s no harm done in parodying a trade mark. Many believe that the idea of free speech, or a simple attempt to inject humour somehow provides some form of defense against trade mark infringement. This couldn’t be more wrong, as two recent incidents illustrate. Reproduced here is a copy of a parody of a famous audit firm, and also of an advert placed by a political party. The significance and parody inherent in each will be obvious to the politically-astute South African reader.

Readers are cautioned: the Trade Marks Act does not tolerate acts in which the reputation of a trade mark is tarnished or diluted. The relevant section in the Act states, specifically, that it is an act of trade mark infringement to use “…a mark which is identical or similar to a trade mark … [if it is] well known in the Republic and the use of the said mark would be likely to take unfair advantage of, or be detrimental to, the distinctive character or the repute of the registered trade mark, notwithstanding the absence of confusion or deception”.

Proudly South African, the owner of the second of the affected marks, has already indicated that it intends taking legal action against the political party responsible for publishing the parody. The purpose of this article is not to comment on whether that action would likely succeed. Instead, we simply use these latest incidences to highlight one, clear certainty: tinkering with well known trade marks is bound to get you into a considerable amount of trouble. It’s no laughing matter!

**The views expressed in the parodies are not necessarily those of Margo IP Attorneys. But they might be.